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The Appellant’s Brief in Scopes, Part 2

John T. Scopes

What, specifically, were the grounds for Scopes’s appeal to the Tennessee Supreme Court? That was the question that I began to address in part 1, relying on a copy (big PDF) of the brief at the Clarence Darrow Digital Collection of the University of Minnesota’s Law Library. I started to transcribe the headings in the “assignment of errors” from the brief submitted to the Tennessee Supreme Court by Scopes’s lawyers here—there are ten in all—and offer running commentary. (Because these are headings, they are set all in capitals; for the sake of legibility, I’ve transcribed them as regular text, so except for the capitals at the beginning of sentences, the capitalization is inferred. For explanations of the “motion to quash the indictment” and the “demurrer thereto” and “the defendant’s motion for a new trial,” consult part 1.) I addressed only the first three of the ten in part 1, so here are the next four.

The trial court erred in overruling the defendant’s motion to quash the indictment and his demurrer thereto on the ground that said act is unconstitutional as giving a preference to a religious establishment in violation of Article I, Section 3, and Article XI, Section 8 of the Constitution of Tennessee. The trial court erred in overruling the defendant’s motion for a new trial on the same ground.

As noted in part 1, the brief devotes about twenty-six pages to making its case here. The Butler Act, it argues, gives “a preference to the religious establishment or establishments that believe in the inerrancy of the Bible literally interpreted, a doctrine which is not accepted by a great many of the Christian churches.” A sense of the breadth of the argument is given by the ten headings:

Argument on Question of Preference

Position of Court and Prosecution

Position of Defense

Religious Question at Basis of Law

Un[-]American Doctrine

Early American Attitude on Religious Freedom

Historical Conflict between Science and Theology

The Bible in the Tennessee Schools

The Bible as the Yardstick of Learning

Effect of This Statute

The brief often bears the indelible stamp of Darrow, and here especially: at one point, for example, it warns that the Butler Act is the first step down a slippery slope, “until we come to the tragic end where bigots light fagots, and with flaming banners and beating drums we march back to the ‘glorious’ ages of Mediaevalism”—more or less the close of Darrow’s address in court on the second day of the trial.

The trial court erred in overruling the defendant’s motion to quash the indictment and his demurrer thereto on the ground that said act is unconstitutional in that it violates Article XI, Section 12 of the Constitution of Tennessee, which provides that “it shall be the duty of the General Assembly to cherish literature and science.” The trial court likewise erred in overruling the defendant’s motion for a new trial on the same ground.

Here the brief tries to smuggle the “statements of distinguished scientists in the excluded bill of exceptions” (excluded because the erratic John Neal, entrusted with the leading role in the appeals process, failed to file it on time: see “Flubbing the Appeal in Scopes” part 1 and part 2) to the court’s notice as “the universal voice of science.” The section of the brief concludes, “the legislature[,] instead of retarding and making a mockery and caricature of science, must sustain and nourish it.”

The trial court erred in overruling the defendant’s motion to quash the indictment and his demurrer thereto on the ground that said act is unconstitutional in that it violates Article I, Section 8 of the Constitution of Tennessee, providing that “no man shall be taken or imprisoned, disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land”, and also in that it violates other provisions of the state constitution heretofore referred to and discussed under argument of assignments VI and VII. [“VI” and “VII” are underlined, and there’s a “?” in the margin.] The trial court likewise erred in overruling the defendant’s motion for a new trial on the same grounds.

The brief discusses the sixth error together with the seventh error (involving federal due process) at great length—forty-five pages in all! In addition to Article I, Section 8, of the Tennessee Constitution, also cited are Article I, Section 9 (the accused’s right to demand the nature and cause of the accusation against him) and Article XI, Section 8 (the legislature’s not having power “to pass any law for the benefit of individuals inconsistent with the general laws of the land”).

The trial court erred in overruling the defendant’s motion to quash the indictment and his demurrer thereto on the ground that said act is unconstitutional as violating Section I of the Fourteenth Amendment to the Constitution of the United States, which provides that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” The trial court likewise erred in overruling the defendant’s motion for a new trial on the same ground.

The seventh error is discussed together with the sixth error (involving state due process). The discussion is complicated, but there are four main charges against the Butler Act. First, conceding that it is within the legislature’s policy to control the state’s public school system, the brief insists that it oversteps if it passes “an act which…is unreasonable or is not within the police power of the state or is violative of another constitutional provision such as that relating to religious establishments,” and argues, in effect, that the law fails on all three counts. Second, the brief argues that the key terms of the law are vague. Third, the brief argues that the law, which criminalizes the teaching of evolution in the public schools only, is therefore not a general law and violates the guarantee of equal protection. Fourth, the brief argues that the law indirectly provides public funds for non-public purposes, namely the promotion of a particular religious point of view on evolution. To be continued in part 3.